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The PhD and the Nominee: Evaluating the Credibility of Witnesses

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By William Vogeler, Esq. on September 28, 2018 3:30 PM

If the Kavanaugh confirmation hearing taught lawyers anything, it is how hard it is to judge the credibility of witnesses.

For witnesses Brett Kavanaugh and Christine Blasey Ford, a prosecutor was appointed to do the questioning. Rachel Mitchell, who leads a special-victims division in Arizona, took the counsel chair.

She gave it her best, but in the end didn't seem to move the needle. Perhaps it's because the jury prejudged the witnesses, and that may be the hardest lesson for any lawyer.

Dr. Ford

The Atlantic said Mitchell asked a "baffling line of questions." Her questions to Ford "seemed piecemeal and vaguely insinuating."

But Mitchell, in her own words, was empathetic towards the witness -- the classic approach to take with victims.

"The first thing that struck me from your statement this morning was that you were terrified," she told Ford. "I just wanted to let you know, I'm very sorry. That's not right."

Ford seemed tense in the beginning, but soon relaxed. Judiciary Committee members thanked her for "compelling testimony."

Judge Kavanaugh

Mitchell took a different approach with Kavanaugh.

She was not the archetypal, aggressive prosecutor, however. She was technical, using legal definitions of words such as "sexual behavior."

It "includes rubbing or grinding your genitals against somebody, clothed or unclothed," she said. Kavanaugh strongly denied everything.

The New York Times explained why Kavanaugh was not believable. When the Senate votes, however, it may not matter.

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